Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Scott County Schools violated the Kentucky Open Records Act in partially denying the request of Aimie Lockwood for "the opportunity to inspect and review the educational records of [her daughter] ," including a "complete list of the types and locations of [her daughter's] education records collected, maintained, or used by the LEA." With regard to records which the Lockwoods concede receiving from the District, any related issues are moot; this office must decline to render a decision relative to same per 40 KAR 1:030, Section 6. Although the Lockwoods are entitled to inspect and review the education records of their child pursuant to 20 U.S.C.A. § 1232g(a)(1)(A), incorporated into the Open Records Act by operation of KRS 61.878(1)(k), 1 the only records still in dispute are removed from the definition of "education records" by 20 U.S.C.A. § 1232g(a)(4)(B)(i). With the exception of certain procedural irregularities, such as initially failing to provide "detailed and particular information" in withholding these "anecdotal records," the District has not violated the Act.
By letter dated January 3, 2006, Aimie Lockwood directed her initial request for education records to Martin Hendrix, Director of Special Education, in the manner "outlined in the IDEA [Individuals with Disabilities Education Act, 20 U.S.C.A. § 1400, et seq. ] procedural safeguards"; Ms. Lockwood clarified that such records would include, "but not be limited to, academic performance and testing, psychological records, transportation-related records, electronic messages, teachers' notes, and records established by the outside agencies with access" to her child's educational information. In addition, Mrs. Lockwood emphasized that she would "like to see any notes, data, finding[s], observations, or reports made by Dr. Cheryl Pearson[,]" and requested that Dr. Pearson be "allowed to give" an "interpretation" of her records; Mrs. Lockwood also requested a copy of any "minutes, summaries or reports from the 504 meetings held on 11/8/05 and 11/18/05." In closing, Mrs. Lockwood asked that her request "be filled in less than 45 days." On January 6, 2006, Mr. Hendrix advised Mrs. Lockwood that her request had been forwarded to Mrs. Jennifer Sutton, who "stated she would have the records copied and ready" at Scott County Middle School on Friday, January 13, 2006.
By letter dated February 6, 2006, Mrs. Lockwood advised Mr. Hendrix, in relevant part, that although she had received a "stack of photocopied records from SCMS principal, Mrs. Sutton, parts of [her] request remain unfulfilled." While Mrs. Lockwood received a copy of her "daughter's IEP folder, discipline reports, some notes from Dr. Pearson at Central Office, the 504 folder, and the cumulative folder from the guidance office[,]" she also requested "psychological records, transportation-related records, electronic messages, and teachers' notes." According to Mrs. Lockwood, she already has "documents from some of these sources (which were not contained [in] the above listed photocopied records)," so she knows "they have been created." 2 In addition, Mrs. Lockwood reiterated her request for records generated by outside agencies that would, "of course, include transcripts, notes, or other written records taken by the KEA union representative during my daughter's ARC[,]" as well as her request for "a complete list of the types and location of any such records," and "contact information" so that she could make subsequent requests directly. Finally, Mrs. Lockwood noted that many of Dr. Pearson's "records seem to be missing from the copy that was forwarded to" her. 3
On March 4, 2006, Mrs. Lockwood directed a "few follow up items regarding [her] daughter" to Mrs. Sutton via electronic mail. More specifically, Mrs. Lockwood inquired as to "observations by Ms. Green after the first 504 meeting," a "screening done by Ms. Green after the first ARC meetings," and information "on bus referrals at SCMS." In response, Mrs. Sutton advised Mrs. Lockwood that she had "not found any bus referrals." As for the screening, "Mr. Hendrix said it was found and included in the report." Likewise, SCMS had "not found any other documentation for observations with the 504 other than what" had already been copied for Mrs. Lockwood.
By letter directed to Mr. Hendrix on March 7, 2006, Mrs. Lockwood, in relevant part, asked for clarification as to whether the records that she inspected on February 24, 2006, at the Central Office were the only records concerning her child that had been given to Mr. Hendrix by Dr. Pearson as opposed to being the only records given to him "and Mrs. Roark, or the only records given to [him] and Mrs. Roark at the Middle School." 4 In a letter directed to Randy Napier, Director of Human Resources, on March 19, 2006, Mrs. Lockwood requested a copy of all documentation concerning the actions of her children's school bus driver generated during the 2003-2004 school year which Mr. Napier had previously assured her "would be kept for future reference." 5 On March 28, 2006, Mr. Hendrix advised Mr. and Mrs. Lockwood that in "response to the request for information made by the U.S. Department of Education Office of Civil Rights, anecdotal records were provided." Because the records were provided to OCR, Mr. Hendrix enclosed a copy for the Lockwoods, including a "phone log maintained by Dr. Teague, a transcription of phone messages left by Mrs. Lockwood for Mr. Hendrix, and a timeline of events prior to the initial ARC meeting."
On April 10, 2006, Mr. Napier notified Mr. Lockwood that the District had "communicated with the individuals" named in her letter; the District asked the individuals "to submit the records they have regarding [his child] to the central office. " 6 In many cases, "that information has been maintained in a file in the Director of Special Education office." In closing, Mr. Napier advised that records containing the requested information would be available for his review "at the Great Crossing office complex during regular scheduled hours 8:00 a.m. - 4:00 p.m. Monday through Friday." 7 Dissatisfied with previous responses of the District, Mr. Lockwood submitted a final written request on April 17, 2006, asking for access to "any documents, records, etc. referenced" in the initial request, "any e-mails concerning [his] daughter's case," and "any records" not previously supplied, including "anecdotal records," whether same are classified "under Section 504, IDEA, discipline, parent-teacher conference or any other category," from August 1, 2005, to April 17, 2006. Acknowledging receipt of "many documents which had been previously withheld, " Mr. Lockwood also requested eighteen items which "likely exist (or should have been created)[,]" including any "notes or records" classified as "'personal notes' or 'personal records' if they have been seen by anyone besides their creator. " 8
Arguing that the District has "intentionally and repeatedly" violated the Act by failing to comply with 06-ORD-036 and 05-ORD-277, and "selectively releasing" the records classified as "'anecdotal, '" the Lockwoods initiated this appeal by letter dated August 21, 2006. Upon receiving notification of the Lockwoods' appeal, Robert L. Chenoweth, legal counsel for the Scott County Board of Education, responded on behalf of the District. Having quoted the language of KRS 61.878(1)(a), (1)(i), (1)(k), and (1)(l), Mr. Chenoweth characterizes education records like those requested as "the very epitome of records of a personal nature," the disclosure of which to a member of the public would constitute an unwarranted invasion of privacy. Citing the Family Educational Rights and Privacy Act (FERPA) codified at 20 U.S.C.A. § 1232g, and its state counterpart, the Kentucky Family Education Rights and Privacy Act (KyFERPA), codified at KRS 160.700 et seq. , Mr. Chenoweth argues that release of records concerning the education of the minor "if it is to be accomplished at all, must be governed by specific provisions of these State and federal privacy laws, and not under the Open Records Act, which specifically prohibits disclosure. " 9 In our view, the premise of this argument is flawed insofar as the applicable state and federal privacy laws are incorporated into the Open Records Act by operation of KRS 61.878(1)(l) and KRS 61.878(1)(k), respectively, as opposed to FERPA/KyFERPA and the ORA being mutually exclusive.
Correctly observing that FERPA vests parents with a superior right of access to education records of their children as compared to members of the general public, Mr. Chenoweth argues:
However, that right of access is governed by specific definitions and regulations. In particular, the United States Department of Education (DOE), has promulgated regulations under FERPA setting forth the obligations of a local educational agency or institution receiving a parental request for education records. At 34 C.F.R. § 99.10(b), an educational agency is obligated to respond to a parent's request for records "within a reasonable period of time, but not more than 45 days after it has received the request." 10 The Lockwoods do not, as such, allege the School District violated this provision of the FERPA regulations pertaining to the timing of parent access to student records, but instead would ask the Office of the Attorney General to obligate [s]chool [d]istricts to apply the general statutory requirements of the Open Records Act rather than the specific statutory requirements pertaining to the specific records at issue in their requests. As specific legislation always controls over general legislation, it is submitted the requirements of FERPA which pertain to student educational records must control in lieu of general Open Records Act provisions, from which student educational records are specifically excepted.
Moreover, excepted from the definition of "education records" under FERPA are "[r]ecords that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record." See 34 C.F.R. § 99.3. It is submitted this exception is the one intended to be referenced by the School District's claim of an "anecdotal records" exemption, as referenced by the Lockwoods in their appeal letter. It is submitted, however, that the exemption found at KRS 61.878(1)(i) would also apply to restrict the Lockwoods' access to these records, as anecdotal notes of a teacher's observations undeniably constitute "[p]reliminary drafts [or] notes" which are not "intended to give notice of final action of a public agency. " 11
On January 3, 2006, the Lockwoods indeed requested from the School District's Director of Special Education (Martin Hendrix) access to [their daughter's] education records. However[,] they specifically couched their request as a request under the "IDEA procedural safeguards."[] Hendrix accepted the request as one under the IDEA, and not under the Kentucky Open Records Act. Again, as a specific statute controls over a general statute, the statute pertaining to the specific category of records ought to be controlling. Under the IDEA, parental access to records is specifically governed by 20 U.S.C. § 1412(a)(8), which references 20 U.S.C. § 1417(c), which in turn references 20 U.S.C. § 1232g (FERPA). As such, the Lockwoods' January 3, request was a request governed by FERPA's forty-five (45) day time period for providing access, and was limited, by necessity, to those documents defined as educational records, which does not include personal notes maintained in the possession of their creator, i.e., [their daughter's] teachers. Other language used in the January 3, letter, specifically excepted their request from even preliminary consideration under the Open Records Act, insofar as it requested the creation of a document, i.e., "a complete list of the types and locations of [her] education records collected, maintained, or used by the [School District]." 12 Moreover, the Lockwoods specifically acknowledged in their January 3, 2006, letter that the 45 day timeline set forth in the FERPA regulations was applicable to their request, by reference in the next-to-last paragraph to a request that the records be provided in less than 45 days if possible. Nonetheless, a response was sent to the Lockwoods within three (3) days, by letter dated January 6, 2006, advising the Lockwoods of an intention to comply with the request, and further advising them a complete copy of the requested records would be ready for them to pick up within ten (10) days of their request. 13
In response to the Lockwoods' follow-up request dated February 6, 2006 (which specifically acknowledged the receipt of the requested records), the Lockwoods were advised that the additional requested records were not found.[] Records which cannot be located after diligent search must be presumed not to exist, and it is submitted the Office of the Attorney General may not render a determination of whether records exist when an agency asserts their non-existence. 14 By letter dated March 28, 2006, the Lockwoods were advised some of the previously withheld "anecdotal records" excluded from parental review by 34 C.F.R. § 99.3, were being provided to the Lockwoods as an outgrowth of an Office of Civil Rights (OCR) complaint review. Voluntarily providing some documents which are otherwise excluded from any disclosure requirements does not automatically require the provision of all such documents. . . .
In another responsive letter to the Lockwoods dated April 10, 2006, the Lockwoods were advised that some documentation which had previously been kept in the sole possession of its creator had been forwarded to the School District's central office, thus removing those records from the exception referenced from 34 C.F.R. § 99.3. Once those documents were received by the central office, and therefore were no longer being kept in the sole possession of their creator, they were made available to the Lockwoods.
As referenced in the Lockwoods' appeal to the [OAG], their requests for records have been the subject of review by the United States Department of Education OCR and have been the subject of a subpoena duces tecum in an administrative proceeding under KRS Chapter 13B. With regard to the investigation by the OCR, the Lockwoods complained to the OCR that they had not been given all of the records requested. The School District responded to the OCR that all educational records which had been located had been provided, and that other specific records requested by the parents could not be located. See photocopy of a letter from OCR to Dr. Dallas Blankenship, Superintendent, Scott County Board of Education, dated June 21, 2006, attached hereto, at p. 2 thereof. In its analysis of this complaint, and the evidence presented, the OCR determined there was "insufficient evidence to support the parents' contention that the District is withholding records responsive to their request." Id. at p. 7. Specifically, the OCR concluded: "Our investigation revealed that the District conducted multiple searches for records pertaining to [the] Student from numerous District offices and personnel and that it turned all of the records it found over to the Complainant [the Lockwoods]. While it is possible there may be records that the District is either unaware of or unable to locate, there is no evidence to suggest that the District has not provided all of the records in their possession or that it is intentionally seeking to conceal or withhold any records from the parents." Id. at p. 7. The [OAG] is asked to conclude likewise. Even if there were procedural violations of the Open Records Act with regard to timeliness of any response to any of the Lockwoods' requests, [] it is submitted the Lockwoods have now been provided all of the documents which the School District has located which pertain to their daughter. As such, the [OAG] should dismiss the Lockwoods' appeal pursuant to 40 KAR 1:030, Section 6. The only records which have been withheld are "anecdotal records" which remain in the sole possession of their creator, and are therefore not "educational records" as defined by FERPA and are otherwise preliminary drafts or notes which are excepted from disclosure under the Open Records Act. Further, as noted, a subpoena was indeed served at the central office of the School District on July 31, 2006. The School District moved to quash that subpoena and the issuing authority, a due process hearing officer assigned pursuant to KRS Chapter 13B, quashed the subpoena. That proceeding is ongoing, and further testimony therein has been continued to a later date. The [OAG] should not permit itself to be used to bypass a discover order in an ongoing proceeding.
Upon receiving the District's supplemental response, the Lockwoods advised this office they have appealed from the "letter of determination" issued by the OCR, "and provided evidence regarding the issue of withholding records." Included is a copy of a letter from OCR dated August 18, 2006, in which Wendella P. Fox, Director, Philadelphia Office, indicates that "additional information must be submitted by September 15, 2006[,]" and estimates that response will take "approximately seventy-five (75) days from receipt of additional information, if submitted." Accordingly, the Lockwoods contend that "OCR's letter of 6/21/06 should not be used by the [D]istrict as evidence." We agree; this office has recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. Early on, the Attorney General observed:
Although there is litigation in the background of an open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
OAG 82-169, p. 2. Elaborating upon this view, the Attorney General said:
The presence of litigation among the parties should not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in process.
OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position as follows:
Inspection of records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein [is] suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under Open Records provisions in accordance with KRS 61.880 .
OAG 89-65, p. 3; See also 97-ORD-98; 95-ORD-27.
In OAG 89-65, the Attorney General qualified his decision with this cautionary language:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
Id., p. 3. To summarize, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, this office has not recognized the right of a public agency to deny access to public records on this basis. In our view, the reasoning of these decisions is equally applicable on the facts presented; the status of neither the OCR determination nor the Chapter 13B proceeding alters the outcome of this appeal. "KRS 61.880(2) requires the Attorney General to give an opinion when so requested as to whether public records are being properly withheld from public inspection by an agency, and whether the agency acted consistent with the Open Records Law." OAG 80-278, p. 3. See 03-ORD-045.
Although the Lockwoods are correct in asserting the District failed to provide "detailed and particular information" in response to some requests, in violation of KRS 61.880(1), this office recently admonished the District for committing the same type of procedural violation in 06-ORD-036 (rendered on February 14, 2006) as noted by the Lockwoods; the analysis contained at pp. 3-5 of that decision is therefore adopted. Since both parties are clearly familiar with governing law, this office will not unnecessarily lengthen the instant decision with further discussion of this issue.
Turning to substantive issues presented, this office finds that Mr. Chenoweth properly invoked 40 KAR 1:030, Section 6 as to records which the District has already provided to Mr. and/or Mrs. Lockwood. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Based upon the evidence of record, this office assumes the District has provided the Lockwoods with a copy of their "daughter's IEP folder, discipline reports, some notes from Dr. Pearson at the Central Office, the 504 folder, and the cumulative folder from the guidance office." In addition, the Lockwoods were subsequently provided with a copy of certain "anecdotal records," such as the "phone log maintained by Dr. Teague, a transcription of phone messages left by Mrs. Lockwood for Mr. Hendrix, and a timeline of events prior to the initial ARC meeting." Finally, the District provided the Lockwoods with "85 pages" of documents not previously made available as well as a page of notes written by Mr. Napier. That being the case, any issues concerning those records are now moot; this office must decline to issue a decision relative to same in accordance with 40 KAR 1:030, Section 6. 15 Accordingly, the remaining question is whether the District properly relied upon 20 U.S.C.A. § 1232g(a)(4)(B)(i) and 34 C.F.R. § 99.3, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), in admittedly withholding those "anecdotal records" which remain in the sole possession of their creator.
Among those records excluded from application of the Open Records Act in the absence of a court order are "[p]ublic records or information the disclosure of which is prohibited by federal law or regulation. " KRS 61.878(1)(k). Both FERPA, 16 codified at 20 U.S.C.A. § 1232g, and the implementing regulations codified at 34 C.F.R. § 99 et seq. , are incorporated into the Open Records Act by the express language of this provision. In conjunction with its state counterpart, KyFERPA, codified at KRS 160.700 et seq. , and incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 17 FERPA regulates access to "education records" like those at issue; § 1232g(a)(4)(A) defines this term as "those records, files, documents, and other materials which--(i) contain information directly related to a student; and (ii) are maintained by an education agency or institution or by a person acting for such agency or institution."
As this office understands it, the goal of this legislation is "'to end denial of access to parents and students, and to prevent violations of student and family privacy rights by the release of unscreened records to third parties without parental or student consent.'" 99-ORD-217, p. 5 (citation omitted). To that end, the term "education records" has been and was "intended to be broadly construed, and the exceptions . . . must be narrowly construed since the value of [the parents'] right of access and [students'] right of privacy "depreciates with every item that is excluded from the definition of 'education record.'" OAG 91-177, p. 4 (citation omitted); 98-ORD-162. Resolution of the instant appeal turns on the language of the exception codified at 20 U.S.C.A. § 1232g(a)(4)(B)(i), pursuant to which "records of instructional, supervisory, and administrative personnel and education personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute[.]" Said another way, excluded from the definition of "education records" are records "that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record." 34 C.F.R. § 99.3(b)(1). 18
On appeal, Mr. Chenoweth clarifies that 34 C.F.R. § 99.3 is the exception upon which the District intended to rely in denying access to records he describes as "anecdotal notes of a teacher's observations." In addition, the District provided the Lockwoods with some of the previously withheld records "as an outgrowth of an [OCR] complaint review" on March 28, 2006. On April 10, 2006, the District advised the Lockwoods that "some documentation which had previously been kept in the sole possession of its creator had been forwarded" to the Central Office which removed same from 34 C.F.R. § 99.3; those records were made available to the Lockwoods once they "were no longer being kept in the sole possession of their creator. " While the Lockwoods are correct in arguing the Open Records Act does not contain an "'anecdotal records' exception," nor did the District cite any such exception initially, the District has acknowledged committing procedural violations of the Act; this office will consequently not belabor the point other than to remind the District of the statutory obligation to provide "detailed and particular information" in a timely manner when responding to requests. 19
In his letter of April 17, 2006, Mr. Lockwood implicitly concedes that 34 C.F.R. § 99.3 applies in specifically requesting any notes or records which have been characterized as "'personal notes' or 'personal records' if they have been seen by anyone besides their creator. " (Emphasis added). According to Mr. Chenoweth, the only records "which have been withheld are 'anecdotal records' which remain in the sole possession of their creator, and are therefore not 'educational records' as defined by FERPA." Assuming the District has disclosed all records except "anecdotal notes of a teacher's observations" or similar types of documents "kept in the sole possession of the maker," which are used "only as a personal memory aid," and "are not accessible or revealed to any other person except a temporary substitute for the maker," the District properly relied upon 20 U.S.C.A. § 1232g(a)(4)(B)(i), and the corresponding regulation, 34 C.F.R. § 99.3, in partially denying the Lockwoods' requests. Absent evidence the District has withheld records which do not fall within the parameters of this exception, the Attorney General has no basis upon which to find a substantive violation.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 See 34 C.F.R. § 99 et seq. , the body of implementing regulations for the Federal Educational Rights and Privacy Act of 1974, 20 U.S.C.A. § 1232g, incorporated into the Open Records Act by operation of KRS 61.878(1)(k), which, in conjunction with its state counterpart, the Kentucky Family Education Rights and Privacy Act, KRS 160.700 et seq. , incorporated into the Open Records Act by operation of KRS 61.878(1)(l), regulates access to "education records," a term defined at 1232g(a)(4)(A). More specifically, the District relies upon 34 C.F.R. § 99.3 on appeal.
2 While this office has no reason to question the veracity of Mrs. Lockwood, the record is devoid of any evidence to substantiate this assertion.
3 As consistently recognized by this office, questions "relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." 04-ORD-216, p. 3; 05-ORD-272; 04-OMD-182; 04-ORD-032; 02-ORD-89. In short, issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records appeal, nor can this office adjudicate a factual dispute regarding a disparity between those records being sought and those provided. 03-ORD-061, p. 2, citing OAG 89-81, p. 3.
4 On appeal, the Lockwoods reference a letter they received from Mr. Hendrix on March 15, 2006, indicating the District had provided "'all records' and that he had 'no knowledge of additional records.'" Absent from the record is a copy of same.
5 According to the Lockwoods, the District "sent no letter in response, although an employee called to tell [them] the requested document no longer existed." Frustrated by the District's "refusal to obey education laws," the Lockwoods filed a complaint "with federal investigators in Philadelphia." As a result, "a few of the public records that had been illegally withheld slowly began to surface."
6 At the beginning of an ARC meeting on March 29, 2006, the Lockwoods "handed Mr. Hendrix another record request letter and asked him to give it to Personnel Director Randy Napier."
7 On appeal, the Lockwoods advise this office they reviewed the records "and found dozens of pages of documents that had not been made available" previously--85 pages in total. But, the "specific information" requested by the Lockwoods "was still not shared."
8 On appeal, the Lockwoods allege that Mr. Hendrix provided one of the eighteen items requested, namely, "'a page of notes dated Feb. 22, 2006 concerning our daughter's case, written by Randy Napier. The original copy we received has a memo sheet obscuring about half of the page.'"
9 Here, Mr. Chenoweth acknowledges the District "committed a procedural violation of the Open Records Act with regard to the Lockwoods' requests, insofar as the three-day response time under the [Act] was not complied with, in light of the specific statutory enactments pertaining to access to educational records of a minor, as discussed infra." Because the District concedes having violated KRS 61.880(1), further consideration of this issue is unwarranted.
10 As noted by Mr. Chenoweth in a footnote, the corresponding Kentucky statute also "only requires that parents be given an opportunity to inspect 'within a reasonable time of making a request to inspect. ' KRS 160.715(1)."
11 Given our determination regarding the application of 34 C.F.R. § 99.3, this office does not reach the question of whether the "anecdotal notes" would also be exempt under KRS 61.878(1)(i); 05-ORD-221, a copy of which is attached, contains the analysis employed by this office in making such a determination.
12 On this issue, 04-ORD-144, a copy of which is attached hereto and incorporated by reference, is controlling relative to application of the Open Records Act. However, Mr. Chenoweth surmises that Mrs. Lockwood's request is, "apparently, based on 34 C.F.R. § 300.565 (promulgated under the IDEA), which requires a location education agency to 'provide parents on request a list of the types and locations of education records collected, maintained, or used by the agency.'" That being the case, the District was required to honor Mrs. Lockwood's request since KRS 61.878(1)(k) incorporates this provision into the Open Records Act.
13 Had the District actually provided the Lockwoods with a copy of all existing records which are responsive to said request on the specified date, or, identified those records not provided, and briefly explained how the cited exception applies, in compliance with KRS 61.880(1), or, in the alternative, had the District provided a detailed explanation of the cause for delay in providing access, in compliance with KRS 61.872(5), such a response would have satisfied the requirements of the Act.
14 In so arguing, Mr. Chenoweth presumably relies upon a line of decisions issued by this office in which the Attorney General recognized that a public agency cannot afford a requester access to records which it does not possess or which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 98-ORD-200; OAG 87-54; OAG 83-54. Under such circumstances, a public agency is required to affirmatively indicate that no additional records exist as the District ultimately did here. Assuming the District made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," the District complied with the Act, regardless of whether the search yielded any results, by notifying the Lockwoods that no additional records were found, and providing a credible explanation for the lack of such records. 06-ORD-040, p. 4, citing 05-ORD-109, p. 3. When adjudicating a dispute concerning access to public records, the role of the Attorney General is narrowly defined by KRS 61.880(2)(c); this office is without authority to deviate from that statutory mandate.
15 Although the Lockwoods maintain that additional records exist which have not been disclosed, the Kentucky Supreme Court held that the "unfettered possibility of fishing expeditions for hope-for but nonexistent records would place an undue burden on public agencies. " Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 341 (2005). In order to refute a complaining party's claim that a record exists, "the agency would essentially have to prove a negative, presumably by presenting evidence of its standards and practices regarding document production and retention, as well as its methods of searching its archives." Id.
16 More specifically, § 1232g(a)(1)(A), the "exception" to the exception, provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.. . . Each educational agency or institution shall establish appropriate procedures for the granting of a request by parents for access to the education records of their children within a reasonable period of time, but in no case more than forty-five days after the request has been made.
Conversely, § 1232g(b)(1) provides:
No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (1) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to [specified individuals under specified conditions listed at (b)(1)(A)-(J)].
17 KRS 61.878(1)(l) authorizes public agencies to withhold public records or information "the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
18 As with any decision involving statutory interpretation, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. To the contrary, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language." Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997).
19 To clarify, any issues concerning the phone log, transcription of telephone messages, and timeline of events ultimately provided to Mr. and Mrs. Lockwood are moot so this office is precluded from reaching a determination as to whether such records fall within the parameters of 34 C.F.R. § 99.3.